With President-elect Donald Trump denigrating public protests and threatening to jail flag burners, we must never forget that the Constitution protects dissent. Last week an appellate court in Michigan issued an important reminder that the First Amendment protects even those who wish to dissent anonymously. The court, in our case Sarkar v. Doe, held that anonymous speakers cannot be unmasked—much less held liable—simply for expressing critical opinions based on public data. The decision is a victory for the website PubPeer, our client, and also for anyone who wants to speak out against a powerful majority without having to fear personal or professional repercussions.
In 2012, PubPeer’s founders created a website dedicated to anonymous post-publication peer review of scientific scholarship. They built anonymity into the website to allow scientists to discover the flaws in their peers’ research without having to fear that those same peers would retaliate. In its short lifespan, PubPeer has already been a tremendous success; its users have discovered flaws in high-profile research, leading to many corrections and even retractions.
But not everyone has welcomed the scrutiny that PubPeer allows. In 2014, a prominent cancer researcher sued several anonymous PubPeer users for defamation. He alleged that they defamed him by pointing out anomalies in his research, and he claimed that their comments cost him a tenured position with a university. Through the lawsuit, the researcher obtained a subpoena requiring PubPeer to disclose the users’ identifying information.
PubPeer refused. Instead, the site filed a motion opposing the subpoena and seeking to preserve its users’ anonymity. PubPeer argued that its users could not be unmasked unless the researcher made a preliminary showing that his claims had merit. In March 2015, a Michigan trial judge ruled that PubPeer had to unmask one—but only one—of the commenters. Both PubPeer and the researcher appealed.
Last week, the appeals court agreed with PubPeer. The court rightly concluded that expressing an opinion on the basis of disclosed facts cannot be defamatory as a matter of law, and that anonymous speakers therefore cannot be unmasked simply for making such statements. Based on the ruling, PubPeer does not have to expose anything about any user to the researcher.
In essence, the court affirmed PubPeer’s model. PubPeer directs its users to focus their comments on publicly available data so that other users can analyze the data and arrive at their own conclusions. The appeals court effectively blessed that approach in holding that anonymous discussion of public data is constitutionally protected. And the court offered a helpful reminder that, even with attempts to chill speech making headlines, the First Amendment will continue to protect anonymous dissent.
